The Adversarial System and the Inquisitorial System
Chapter Seventeen
Syllabus topic 2, "Administration of Criminal Justice - Meaning, Necessity and Growth"
Pages 54 to 56 of 711
In one line
In an adversarial system two sides contest before a passive judge who decides between them; in an inquisitorial system the court itself investigates and the parties assist.
In the wording a student can write in an exam: the adversarial system, which India inherited from England, casts the judge as an impartial umpire between a prosecution that must prove its case and a defence that need prove nothing, with the evidence chosen and presented by the parties and tested by cross-examination; the inquisitorial system, which prevails in most of continental Europe, casts the court as the investigator, with a judicial officer supervising the collection of evidence into a dossier which the trial judge reads and then examines the witnesses himself; and the difference is not one of fairness but of who bears the responsibility for finding out what happened.
The two systems set out
The adversarial system.
The parties define the issues. The prosecution selects its witnesses and its documents; the defence selects its own. The judge does not investigate and, as a rule, does not call witnesses of his own.
The prosecution bears the burden of proof throughout and must prove guilt beyond reasonable doubt. The accused is presumed innocent, need prove nothing, need say nothing, and cannot be compelled to be a witness against himself.
Evidence is tested by cross-examination, which means questioning by the opposing party. The theory is that a proposition that survives hostile questioning is more likely to be true than one that has only been asserted.
There are strict rules of admissibility, because a passive judge who receives everything cannot separate what is reliable from what is not.
The inquisitorial system.
The State, through an investigating judge or a supervising prosecutor, is responsible for finding out what happened. The investigation is judicially supervised and produces a dossier, a written record of everything found, including what favours the accused.
The trial judge reads the dossier before the hearing, and at the hearing he questions the witnesses and the accused himself. The parties supplement his questioning.
The accused is interrogated as a source of information, though modern European systems give him a right of silence. Rules of admissibility are looser, because the fact-finder is a professional judge trusted to weigh what he hears.
The comparison, in a table
| Adversarial | Inquisitorial | |
|---|---|---|
| Who investigates | The police, for the prosecution | The court, or a judge supervising |
| The judge at trial | Umpire; passive | Investigator; active |
| Who chooses the evidence | The parties | The court, from the dossier |
| Principal testing device | Cross-examination | Judicial questioning |
| Burden of proof | On the prosecution, throughout | On the State, but the court seeks the truth |
| The accused | Presumed innocent; may be silent | Questioned; modern systems allow silence |
| Rules of admissibility | Strict | Looser |
| Characteristic risk | The better-resourced party wins | The investigation's early view becomes the verdict |
The Adversarial System and the Inquisitorial System
The criticisms of each
Against the adversarial system. It treats the trial as a contest, so the outcome depends on the quality of the advocates and not only on the facts. It rewards concealment: neither side is obliged to lead evidence that damages it. It leaves the truth undiscovered where both parties prefer it undiscovered. And it is hard on the victim, who is a witness and nothing more.
Against the inquisitorial system. The judge who supervised the investigation has formed a view before the trial begins, and a fact-finder who has already read a dossier constructed by the State is not neutral in the way the adversarial model requires. There is less protection against a long pre-trial detention used to secure a confession.
Where India actually stands
India is adversarial in structure and has borrowed inquisitorial elements, and an answer that says only "India is adversarial" is incomplete.
The adversarial features. The prosecution proves; the accused is presumed innocent; there is cross-examination; the rules of evidence are codified and strict; the judge does not investigate.
The inquisitorial borrowings. The court may summon any person as a witness of its own motion, and may recall and re-examine any witness, if it thinks his evidence essential to the just decision of the case. The court may direct further investigation. The accused is examined by the court to explain the circumstances appearing against him, though not on oath and without any obligation to answer. And the police investigation is conducted under a duty to record everything, including material favourable to the accused, which is inquisitorial in spirit.
What was proposed and not adopted. The Malimath Committee, whose chapter follows, recommended importing a good deal more: a duty on the court to search for the truth, a power to question the accused, and a lower standard of proof. Those recommendations were not enacted, and the reasons are worked in that chapter.
Worked example
A prosecution witness in a trial in Nagpur gives evidence that plainly leaves out the middle of the story. Neither the prosecutor nor the defence asks about it, each for its own reasons.
In a pure adversarial system. Nothing happens. The gap remains, and the judge decides on what he was given. That is the system's characteristic failure and it is a real one.
In an inquisitorial system. The judge asks the question, because finding out what happened is his responsibility.
In India. The judge may summon or recall a witness of his own motion where he thinks the evidence essential to the just decision of the case, and may put questions to any witness at any stage. So the Indian judge is not confined to what the parties give him.
The Adversarial System and the Inquisitorial System
Why does the Indian position matter to the answer? Because it shows that the two models are ends of a range rather than two boxes, and that India sits nearer the adversarial end with deliberate exceptions.
What it does NOT mean
Inquisitorial does not mean unfair. The word is a description of who investigates, not a judgment. European systems produce fair trials and are bound by the European Convention.
Adversarial does not mean the judge is powerless. In India he can call witnesses, direct further investigation, and put questions.
And the choice of system does not settle the fundamental principles. The presumption of innocence and the right against self-incrimination exist in both families, in different forms, which is exactly what MU's question about the fundamental principles in an adversarial system is testing.
Quick revision
- Adversarial: parties investigate and present, judge is umpire, cross-examination tests the evidence, prosecution bears the burden throughout, strict rules of admissibility.
- Inquisitorial: the court investigates or supervises, a dossier is compiled, the judge questions, admissibility is looser.
- The real difference is who is responsible for finding out what happened.
- India is adversarial with inquisitorial borrowings: the court may summon or recall a witness of its own motion, may direct further investigation, and examines the accused to explain the circumstances against him.
- The characteristic risk of each: the better-resourced party wins in one, the investigation's early view becomes the verdict in the other.
Test yourself
1. State the single difference from which all the others follow. Who is responsible for finding out what happened. In the adversarial system the parties are; in the inquisitorial system the court is.
2. Give two inquisitorial elements present in Indian criminal procedure. The court's power to summon, recall and question any witness of its own motion where the evidence appears essential to a just decision, and the examination of the accused by the court to enable him to explain the circumstances appearing against him.
3. What is the characteristic weakness of an adversarial trial? That the outcome turns partly on the quality of the advocacy and on what the parties choose to lead, so a fact neither side wants explored may never be explored.
4. Why does the question of system matter to the fundamental principles? Because some of those principles, such as the presumption of innocence and the burden on the prosecution, take their shape from the adversarial model, and an answer must say which are artefacts of the model and which would survive a change of system.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.